State court narrowly dismisses killer's bid for stay days before execution

This handout photo provided by the Texas Department of Criminal Justice shows Robert Campbell. Attorneys for the Texas death row inmate have filed a federal civil rights lawsuit seeking to delay his execution following a bungled execution in Oklahoma. Campbell's execution is scheduled for May 13, 2014. (AP Photo/Texas Department of Criminal Justice)

This handout photo provided by the Texas Department of Criminal...

The Texas Court of Criminal Appeals in a 5-4 vote Thursday rejected an appeal by convicted Houston killer Robert Campbell, who is scheduled to be executed Tuesday for the January 1991 rape-murder of a 20-year-old Houston bank teller.

Campbell's attorney Robert Owen had raised claims that Campbell, 41, is intellectually disabled and therefore ineligible for execution and that his defense had suffered because of inadequate legal representation.

The state's top criminal appeals court said the allegations did not meet relevant judicial standards for consideration, dismissed the appeal as an abuse of the writ and turned down the request for a stay.

Judge dissents

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In a dissent, Judge Elsa Alcala argued that recent testing of Campbell showed he had an IQ of 69, indicating that he is intellectually disabled. She also noted that a 2003 appeal based on intellectual disability was rejected by the court because of a reported Texas Department of Criminal Justice intelligence test report showing an IQ of 84, well above the disability threshold.

But, Alcala noted, Campbell's latest appeal asserted that the Texas Department of Criminal Justice did not provide results of a second test that indicated disability.

4 justices favor review

Furthermore, she said, the new appeal asserted that the Harris County District Attorney's office failed to provide Campbell's lawyers with documents that would have supported his 2003 claim.

Alcala was joined by justices Tom Price, Cheryl Johnson and Cathy Cochran in favoring a court review of Campbell's claims.